IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
Dated this the 31st Day of December 2018
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President
Smt.S.Sandhya Rani, BSc,LL.B, Member
CC No.114/15
Indira Bai : Complainant
Sivaranjini Bhavan
Edakad Muri
Poruvazhi Village
Kunnathoor Taluk, Kollam
V/s
Dr.Kamalasanan : Opposite party
Navabharath Hospital
Sasthamcottah
Kollam-690521
[By Adv.K.G.M.Nair]
Navabharath Hospital : Additional Opposite party
Sasthamcottah
Kollam.
[By Adv.C.S.Sunil]
ORDER
E.M.MUHAMMED IBRAHIM , B.A, LL.M,President
This is a case based on a consumer complaint filed under Section 12 of the Consumer Protection Act originally against Dr.Kamalasanan subsequently additional 2nd opposite party, Navabharath Hospital Sasthamcottah, Kollam has been impleaded as per Order in IA 125/16 dated 26.11.15.
The averments in the complaint in short are as follows.
The 1st opposite party doctor is the owner of the additional 2nd opposite party hospital. The complainant is the wife of a TB patient who has been residing at a rented house and has not having any regular source of income. On 20.11.14 she has sustained a wound on her right finger. She has undergone a
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minor operation on that finger at the 2nd opposite party hospital. Now she is unable due to his activities due to pain. Though the complainant approached the 1st opposite party for continuing treatment he has not given continuous treatment and therefore she approached the A.M.H Hospital, Karunagappally. After necessary examination the doctor at that hospital told the complainant that the nerve of that finger has been cut and that is why she has been suffering from the above difficulties on her finger. Therefore it is clear that there is deficiency in service on the side of the 1st opposite party doctor. The complainant would further allege that the defects and difficulties suffered by the complainant is due to the negligent and in adverted surgery conducted by the 1st opposite party doctor and hence she is unable to engage in any employment and therefore she prays to award compensation of Rs.2,00,000/- from the opposite parties.
The additional 2nd opposite party entered appearance and resisted the complaint by filing a detailed written statements raising the following contentions. The complaint is not maintainable either in law or on facts. The complaint is hopelessly barred by limitation. The particulars furnished by the complainant are grossly in sufficient and inadequate for the proper adjudication. The furnished facts are also incorrect. The allegation that the complainant is unable due to her activities due to pain and she is having some defects on her finger due to the minor surgery in false. The complainant is running a tea shop and her working environment is very unhygienic. Almost all the time she has to be in a wet environment. The complainant never cared about the wounds she has sustained and never take the advise of the doctor treating her. She was never regular in her treatment. It was the habit of the complainant that once she gets some slight relief she never continue her treatment. The complainant is a patient for Diabetic for long duration.
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The averment in para 3 of the complaint that the opposite party has denied further continuous treatment to the complainant is utter false and hence denied. It is brought to the notice of this forum that she has never approached the opposite party for further treatment after 25.10.14. The further averment that she has taken treatment with AM Hospital Karunagappally is not within the knowledge of the 1st opposite party. The complainant has not produced any records pertaining to the treatment with the AM Hospital Karunagappally. The further claim of the complainant that she had some defect in her finger due to the damaging of the nerve which has been cut in the course of treatment and that happened due to the negligence on the part of the opposite party is utter false and hence denied.
The complainant came to the opposite party hospital on 14.10.14 and after removal of the dead tissues she was supposed to come to the hospital every day for regular dressing but she was very irregular and due to the same the wound had become more slougy acceding infection when she was treated on 16.10.14 hence as further treatment antibiotic injection was also started. The complainant has again visited the hospital on 20.10.14 and on that day it was observed that the wound was clear and further cleaning and dressing was done after 24.10.14 the wound was healing and on 25.10.14 the wound was healed and after that she has not visited the hospital for further treatment.
The complainant who is a Diabetic of long duration came to the opposite party hospital with infection and wet gangrene of middle finger of right hand. Wet gangrene almost always involved an infection. Wet gangrene can rapidly cut off blood supply to the affected area, causing tissue death and increased risk of infection. The tissue swells and blisters and is called “wet” because of pus. Infection from wet gangrene can spread quickly throughout the body, making wet gangrene a very serious and potentially life-threatening condition if not treated quickly.
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As the complainant was having acute wet gangrene the first priority of the opposite party was to prevent further upward spread of infection and save the finger as far as possible. If proper treatment is not offered it could turn out to be life threatening as there is diabetes. By treatment protocol the opposite party was supposed to remove all the dead tissues fully( total debridement) and administer appropriate antibiotics, anti-diabetics and follow up regular dressing. The opposite party administered standard treatment as above and the wound healed well. The treatment started on 14.10.14 and her last visit for treatment was on 25.10.14.
The complainant has long standing diabetes and is allergic to most medicines. So the opposite party has taken extreme care and diligence in this case. As a result of the treatment extended by the opposite party the spreading of infection was stopped and she had a nice healing.
Treatment for gangrene involves removing the dead tissue, treating and preventing the spread of infection, and treating the condition that caused gangrene to develop. The sooner patient receives treatment, the better is the chance of recovery. One of the treatment for gangrene include surgery which is also called debridement, the dead tissue is surgically removed to prevent the spread of infection. In some situations, amputation(removal) of the affected limb, finger or toe may be required. Here in this case to save the complainant from Amputation the opposite party has taken the second option debridement and the same was successful.
The present deformity and difficulty to flex the finger might be due to damage of the small muscles of the finger due to infection, gangrene and the scarring and stiffening of healing process. And also that she might probably have kept the finger in extended position always for convenience. The allegation that due to the surgery she lost function of the finger has no medical reason. There is no medical negligence on the part of the opposite party.
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The opposite party has been practicing in the field of medicine for the past 40 years and he is also having good experience in this field. The opposite party has never come across such a situation. Through his whole carrier not even a single patient had complaint about his treatment except the present complainant. This vexatious complaint has been filed before the forum on experimental basis to extract some amount from the opposite party at the instigation of some external people.
In the light of the above pleading the points that arise for consideration are:-
- Whether there is any deficiency in service on the part of the opposite party No.1and additional 2nd opposite party?
- Whether the complainant is entitled to get compensation and costs as claimed in the complaint?
- Reliefs and costs.
Evidence on the side of the complainant consists of the oral evidence of PW1&2 and Ext.P1 to P4 documents and Ext.X1 disability certificate. No evidence either oral or documentary has been adduced on the side of the opposite parties. Though the case was specifically posted for filing notes of argument and hearing the learned counsel for the opposite parties have not turned up and argued on the merit of the case nor filed any notes of arguments. The learned counsel for the complainant has filed notes of arguments and advanced oral arguments.
Point No.1&2
For avoiding repetition of discussion of materials these 2 points are considered together. PW1 is none other than the complainant who has sworn in the proof affidavit that on 14.10.14 she approached the 1st opposite party doctor at the 2nd additional opposite party hospital for treating her middle finger of right hand which was infected and filled with puss. On the same day the 1st opposite party gave medicine and also conducted a minor surgery on the said
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fingertip. Even though the finger was freezed by giving medicine the complainant suffered heavy pain during the surgery and she has made a complaint regarding the pain she suffered then and there itself to the 1st opposite party and the duty nurse. But they turned a deaf ear to her complaint. However on the same day the complainant was discharged after handing over the OP card. Though she made a complaint regarding the pain due to surgery on the finger top which also became rigid and immovable. The opposite parties have not verified the finger but casually said the pain is part of surgery. Even on repeated complaint the opposite parties have not made any attempt to cure the same. Hence the complainant on 07/02/15 approached AM Hospital, Karunagappally were they have taken X-ray of the said finger and on examination of the X-ray it was revealed that nerve was cut and misplaced in the surgery conducted by the 1st opposite party and that is the reason for the said rigidity and immovability of the said finger. Hence PW1 would allege that there is professional negligence on the part of the opposite parties in conducting surgery on her finger. Though PW1 was subjected to severe cross examination by the learned counsel appearing for opposite party No.1 and 2 nothing materials has been brought out to disbelieve the above version of PW1. Ext.A1 to A4 documents would corroborate the above version. The opposite parties would resist the above case of the complainant with tooth and nail. However the following are the admitted facts in this case. The complainant was treated at the additional 2nd opposite party hospital by the 1st opposite party on 14.10.14. Prior to the said treatment the complainant was having no deformity in the said finger. Subsequently she had undergone treatment at the AM Hospital, Karunagappally on 07/02/15 X-ray was taken and on verification of the X-ray it was revealed that nerve was cut and misplaced.
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The 1st opposite party has no dispute that he has treated the complainant for an infection at the right middle finger tip. However there is deformity in the said finger even after the treatment. It is brought out in evidence that the deformity is caused after the surgery. This aspect was not challenged during the cross examination by the opposite parties. It is true that the opposite party would allege that on 11.05.15 the complainant met the opposite party and requested for a reference letter to Medical College hospital, Thiruvananthapuram and the same was given. Referring the complainant to higher institution like Medical College itself would indicate that the surgical injury was normally not healed and the complainant needed further treatment at higher institution.
It is also brought out in evidence that the complainant filed a petition as IA No. 169/2015 seeking to direct the opposite parties to produce the entire documents relating to her treatment. But the opposite parties have produced only a single sheet of OP ticket as the treatment records which is a clear violation of the Regulation 1.3 of the Indian Medical Counsil (professional Conduct, Etiquette and Ethics) Regulations 2002.
In view of the materials discussed above it is clear that there is Professional negligence and deficiency in service on the part of the 1st opposite party doctor who treated the complainant and the additional 2nd opposite party hospital which has not kept appropriate records relating to the treatment of the complainant. Hence there is deficiency in service and professional negligence on the part of opposite party No.1 and additional 2nd opposite party. The materials available on record would clearly indicate that the complainant has sustained pain and mental agony apart from financial loss due to her inability to continue her work in the hotel business with the right hand . In the circumstance the complainant is entitled to get compensation.
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The oral evidence of PW2 doctor coupled with Ext.X1 Medical Board report would indicate that there is 35% disability to the finger and 1% disability as a whole. It is also brought out in evidence that the complainant was running a small hotel which was her sole income for her livelihood and due to the immobility and rigidity of her finger of the right hand she could not do any work and the same has seriously affected the earning capacity of the complainant. It is clear from the averments in the complaint itself that the complainant is a lady of 54 years. If a lady like the complainant is deputed to do the hotel work from the morning to the evening she would get atleast an amount of Rs.500/- per day. Usually hotel business is being conducted on all days except festival days like Onam/ X-mas etc. It is brought out in evidence through PW2 doctor that it is difficult for the complainant to do manual work by using that finger. It is true that there is 35% disability on her right hand but having only 1% total disability. Hence the claim of the complainant that she is unable to do any work at all in the hotel business is not believable. PW1 herself has admitted during cross examination that he can do work in the hotel business with left hand and cannot do work with her right hand. In view of the age of the complainant nature of avocation and other circumstances we are of the view that compensation to the tune of Rs.50000/- will be reasonable and sufficient. The points answered accordingly.
Point No.3
In the result the complaint stands allowed in the following terms.
Opposite party No.1&2 are directed to pay Rs.50000/- as compensation to the complainant within 45 days from today and also directed to pay Rs.5000/- as costs of the proceedings.
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If the opposite party No.1&2 fails to pay the amount within 45 days the complainant is at liberty to recover Rs.50000/- with interest @ 9% p.a from the
date of complaint till realisation from the opposite party No.1&2 jointly and severally and from their assets.
Dictated to the Confidential Assistant Smt.Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Forum on this the 31st day of December 2018.
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Forwarded/by Order
INDEX
Witnesses Examined for the Complainant:-
PW1 : Indira Bhai
PW2 : Dr.Uniikrishnan
Documents marked for the complainant
Ext.P1 : Identity Card
Ext.P2 Series : Bills
Ext.P3 : OP Card
Ext.P4 : X-ray
Witness examined for the opposite party:-Nil
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Forwarded/by Order
SENIOR SUPERINTENDENT
